Siniscalchi v. Pennachio

Appellate Terms of the Supreme Court of New York

Siniscalchi v. Pennachio

113 N.Y.S. 1003

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 8, 1909

StatusPublished

This text of 113 N.Y.S. 1003 (Siniscalchi v. Pennachio) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Siniscalchi v. Pennachio, 113 N.Y.S. 1003 (N.Y. Ct. App. 1909).

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Opinion

BISCHOFF, J.

The plaintiff’s recovery for prevention of performance of a contract for altering the defendant’s premises is well [1004]*1004supported by the facts in evidence. So far as the agreement indicated his obligation to obtain a permit from the building department, this obviously related to the character of the work of alteration, and to the submission of plans for the work which would be satisfactory to the department. It appears that the plaintiff did comply with his agreement so far, and that the failure to obtain the official consent was due wholly to the defendant’s omission to complete an earlier proceeding of his own, whereby the building was to be taken out of the jurisdiction of the tenement house department, a condition not within the plaintiff’s duty to meet.

The fact of prevention of performance was established by credible evidence that the defendant personally had ordered the plaintiff to cease work, and the question did not depend upon the effect of an order given to the plaintiff’s employés by the defendant’s son, who was in apparent charge of the premises. Possibly, as contended by the defendant, his son’s authority to stop the work was not shown; but the evidence was none the less competent, since an act of obstruction, by a person placed in charge of the place of work, under the defendant’s control, was certainly a circumstance bearing upon the plaintiff’s duty to perform.

The judgment should be affirmed, with costs. All concur.

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BISCHOFF, J.

The plaintiff’s recovery for prevention of performance of a contract for altering the defendant’s premises is well [1004]*1004supported by the facts in evidence. So far as the agreement indicated his obligation to obtain a permit from the building department, this obviously related to the character of the work of alteration, and to the submission of plans for the work which would be satisfactory to the department. It appears that the plaintiff did comply with his agreement so far, and that the failure to obtain the official consent was due wholly to the defendant’s omission to complete an earlier proceeding of his own, whereby the building was to be taken out of the jurisdiction of the tenement house department, a condition not within the plaintiff’s duty to meet.

The fact of prevention of performance was established by credible evidence that the defendant personally had ordered the plaintiff to cease work, and the question did not depend upon the effect of an order given to the plaintiff’s employés by the defendant’s son, who was in apparent charge of the premises. Possibly, as contended by the defendant, his son’s authority to stop the work was not shown; but the evidence was none the less competent, since an act of obstruction, by a person placed in charge of the place of work, under the defendant’s control, was certainly a circumstance bearing upon the plaintiff’s duty to perform.

The judgment should be affirmed, with costs. All concur.

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Bluebook (online)

113 N.Y.S. 1003, Counsel Stack Legal Research, https://law.counselstack.com/opinion/siniscalchi-v-pennachio-nyappterm-1909.